Ahmar v Donzo et al [2010] LRSC 38 (31 August 2010)
Rocky Ahmar of the City of Kakata, Margibi County, R.L. PLAINTIFF VERSUS Madama Donzo and David Siaway of the City of Kakata, Margibi County, R.L. DEFENDANTS
ACTION OF EJECTMENT
HEARD: March 17, 2010 DECIDED: August 31, 2010
MADAM JUSTICE WOLOKOLIE DELIVERED THE OPINION OF THE COURT
In this appeal before us, Rocky Ahmar, the appellee and plaintiff below, filed an action of ejection on February 16, 2006, in the 13th Judicial Circuit, Margibi County to oust and evict the appellants, Madama Donzo and David Siaway from property said to be leased by him in October 1999, from Samuel G. Dean, Jr. He attached to his complaint a fifteen year lease agreement that spans from October 1, 1999 to September 30, 2014, for two lots.
The defendants, appellants before us, denied the allegation of the appellee’s complaint and countered that co-appellant Donzo in 1989 bought the property in dispute from Claude and Richard Rouhana who had bought a property from Samuel Dean, Sr. Having acquired the property, Madame Donzo built on it a gas station, with an office space and a tire shop. In furtherance of her title and possessory rights, on January 1, 1999, she leased the property to one Mr. Farady Moore for seven (7) years. Mr. Moore stayed and operated the gas station until the expiration of the lease on December 3, 2005. When her lease agreement with Mr. Moore expired, co-appellant Donzo alleges that appellee Rocky Ahmar expressed interest in entering a lease with her but she refused his offer and instead entered into a lease agreement with co-appellant Siaway to construct a modern three-storey building on the property to be used as cold storage and store in direct competition with the appellee. Thereafter, the appellee sought to have her ousted from her property alleging that he is entitled to the premises based on a lease agreement with Samuel Dean, Jr. who appellants claim was the very same grantor of the Rouhanas, her grantor.
Co-appellant Donzo also contends that since she acquired title and possessory rights to the said property in January 1999, she has continuously and openly exercised her rights to the property and it is only after more than fifteen years after she had acquired the property and more than five years after appellee’s alleged lease with Samuel dean, Jr. that the appellee has sought to file his action to eject her. Co-appellant Donzo says this is a further attempt by the appellee to take over her property which appelle had previously tried to do when she ran into Guinea because of the civil crisis, and that she had managed to thwart by keeping her privies in possession of the property. Appellants further allege that appellee’s action is merely an attempt to stop appellants from engaging in a business venture directly in competition with him, the appellee.
The records in this case show that while the matter was pending in the court below, the appellants began demolishing the gas station and proceeded with their storey building project. The appellees filed a motion for Preliminary Injunction to prevent the appellants from demolishing the gas station on the property. The court sent an order to halt the demarcation. After a hearing of appellants’ motion to vacate the injunction filed, the court below granted the appellants’ motion to vacate the injunction. Again, the appellee filed a motion for receivership requesting the court below to designate a receiver of no partisan interest to collect rents from the storey building which the appellants had completed because the appellee alleged the appellants’ continuous commercial activities on the premises would unjustly enrich the appellants at the damage and disadvantage of the appellees. There is no record before us of how this motion for receivership was disposed of.
This Court is frustrated by the disorganization of records being sent up before it like in this case. It’s a testimony of our filing system, and an indication of how our lawyers place little importance to the taxing of records coming before us. However, meandering through the records before us, we found that based on the application of the appellants, the parties submitted themselves to a board of arbitration to conduct a survey to establish the property on the ground as per their deeds. A first survey was conducted, but the appellants, objecting to the manner in which the survey was conducted, filed a petition for a writ of prohibition before the Justice in Chambers. The Justice in Chambers called the parties to a conference, during which an understanding was reached that the first board’s report would be vacated and a second board of arbitration set up comprising surveyor representing each party, chaired by a surveyor from the Ministry of Lands and Mines.
The parties having reached an understanding, the Justice in Chambers instructed the Clerk of the Supreme Court to send a mandate down ordering the court below to reconstitute a board, write and inform the Ministry of Lands and Mines to nominate a surveyor to chair the board comprising a representative of each party.
Interestingly, we see in the records the following letter dated September 23, 2008, addressed to the court by Mr. F. Augustus Caesar, Jr. and M. Sebestian Lahai, Attorney-in-Fact for the Leighs:
September 23, 2008
Her Honor Mardea T. Chenoweth
Resident Judge 13th Judicial Circuit
Kakata Margibi County
Republic of Liberia
MAY IT PLEASE YOUR HONOR.
IN RE: Rocky Armah E PLAINTIFF Vs. Madama Donzo & David Siaway DEFENDENTS. ACTION OF EJECTMENT
We write through this medium to officially inform you to the effect that we are AttorneysIn-Fact for Marie Leigh Parker as per photo copy of our power of Attorney hereto attached for your reference.
It is our understanding that the Supreme Court has mandated the parties in the above captioned matter to submit themselves to a board of arbitration to your honorable office for the disposition of the worthy cause of action.
We write to formally apprise you of the fact that we are a party of interest to the disputed property; consequently, we would appreciate were we to be joined for the arbitration process as plaintiff. In furtherance of this, we are appointing, nominating and constituting Mr. Stephen Ndorbor as our representative to the Board of Arbitration. As soon as a notice of assignment is out for the qualification, we will proceed to Kakata with our surveyor and relevant documents.
Kind regards.
Very truly yours,
Mr. F. Augustus Caesar, Jr. Mr. Sebestian Lahai /Attorneys-in -Facts
We do not see any record in the court’s file showing how this letter was handled by the court below or an objection filed by the appellants’ counsel to the intervention of the Leighs at this stage of the proceeding. However, we see a letter dated October 20, 2008, by the Board of Arbitration, presenting a cost estimate to the court and parties, and the appellants’ counsel letter in reaction thereto:
“October 20, 2008
Cost estimate of the disputed land case in Kakata City between the David Dean, the Dupigny Leigh and the Donzo family all of Kakata, Margibi County.
1. Survey Notice by radio in Kakata for 5 days at the rate of L$75.00 per day = L$375.00 or US$10.00
2. Survey Notice in paper (Inquirer) for 2 days at the rate of US$35.00 per day is US$70.00, Subtotal = US$80.00.
3. Cost of survey exercise
In order to get the true fixture of this dispute, the following measure has to be taken: a) To demarcate the 40 acres owned by the Leigh family where the 10 acres came from; b) To demarcate the 10 acres bought by Dean from the Leigh; c) To demarcate Claude Rouhana as land bought from Mr. Dean (Emphasis ours); d) To demarcate the land from Rouhana to Madam Sirleaf, so that we will know as to where the encroachment is:
Therefore:
a) To demarcate Leigh 40 acres [10 lots?]….US$1,750.00
b)To demarcate Dean’s 10 acres EUS$1,250.00
c) To demarcate Rouhana 2 lots EUS$1,000.00 (Emphasis ours)
Subtotal: EUS$4,000.00
Division: 1) Leigh family EUS$1,750.00′
2) Dean family E US$1,250.00
3) Rouhana or Sheriff E US$1,000.00
Seventy-Five percent (75%) of each payment is expected by Wednesday, October 22nd , 2008 in order to start the process.
TWLF/NT/CLLR./438/’08
November 3, 2008
Mr. Edwin Boakai, Sr., et. al
CHAIRMAN
Board of Arbitration
Kakata, Margibi County
Republic of Liberia
Dear Mr. Chairman:
IN RE: Rocky Armah E PLAINTIFF Vs. Madama Donzo & David Siaway DEFENDENTS. ACTION OF EJECTMENT
Acting for and on behalf of our clients, we write to register our opposition to the amount charged our clients as new charges made as of the 20th day of October, A.D. 2008 and delivered to our client.
First and foremost, to have a fair determination of this matter, the plaintiff must designate this Surveyor to the Board and accordingly make payment of his share of the arbitration cost. They are the major parties before court in the ejectment action. Secondly, the reversed fee is higher than the first. What is the justification for such?
Furthermore, the bill is unacceptable to us in that the amount charged our client is astronomical.
a)To demarcate Leigh 40 acres US$1,750.00
b)To demarcate Dean’s 10 acres US$1,250.00
c)To demarcate Rouhana 2 lots US$1,000.00
We have consistently told the Board that Rouhana purchased from the Deans and later sold to Madama Donzo but your Arbitration Board cost carries the name of the Rouhanas.
We would therefore appreciate were you to contact the Judge to convene a meeting with all of the parties present to discuss these standings issues and set a date for the survey to afford our client the opportunity to be present.
Kind regards.
Very truly yours,
Nyenati Tuan COUNSELLOR-AT-LAW
After the appellant counsel’s above letter to the Chairman of the board, it is not reflected in the records, the compromise reached, but the survey was conducted and the following report made to the court by the board of arbitration:
To: The Judiciary 13th Judicial Circuit Kakata, Margibi County
From: The Chairman and Members Board of Arbitration on Rocky Ahmar and Madama Donzo and David Siaway
Subject: Report on the Investigative Survey in the Above Named Case
Date: December 5, 2008
We the members of the Board of Arbitration in the above captioned case do here by submit to your Honorable Court this report for the investigative survey conducted by the Board. This report contains information from the documents (Deeds) received during the survey exercise, survey methodology, technical analysis, findings/observations, recommendation and conclusion. Commencement of the survey: On the 15th of October, 2008, the 13th Judicial Circuit of Kakata, gave us the power by taking oath to conduct and report a clear and comprehensive report over the land dispute between Rocky Ahma and David Siaway and Madama Donzo all of Kakata, Margibi County. On the same day of the assignment, the parties involved with their respective surveyors, proceeded to the site for a survey recognizance, for the identification of property points this process was carried on smoothly with the families of Rocky Ahma been represented by the Deans, the Leigh family and the Donzo and Siaway Families.
Representations:
On the Board of Arbitration, the following representations were made.
1. Mr. Edwin Boakai, Sr., Chairman of the Board representing the Government and Court
2. Mr. Stephen Ndorbor, Surveyor representing the Leigh family grantor of the Deans.
3. Mr. Dominic Hena, Surveyor representing the Deans family grantor of the Rouhana family.
4. Joseph Melin, Surveyor representing the Siaway and Donzo families, grantee of Mr. Rouhana. Also represented was Madam Dean, Administrator of her husband’s property and Mr. Parker and his mother representing the Leigh family.
Documents received by the Board: On the day of the recognizance survey, the surveyors of the Board, and the various parties went on the ground for the identification of their various points which went on smoothly among many other interesting citizens. (a) A cornerstone at the intersection of 1st avenue and the Firestone-Bong Mines Road was shown as a starting point for the Leigh’s Forty (40) acres [ 40 or 20 acres? ] block from which the Deans’ ten (10) acres come (b) A concrete monument almost at the center of the Forty (40) acres, as a boundary point between Leigh and Dean, was established. (c) An assumed point was also shown between the Deans and the Watson family.
Documents received by the Board are as follow:
1. A certify photo copy of a Public Land Sale Deed from the Republic of Liberia to T.W. D. Leigh, recorded in Vol. 48, pages 371 & 372; probated on the 19th day of September, 1933 according to Law, and contains 20 acres block # 1 FL.
2. A certify photo copy of a Warranty Deed from T. Dupigne Leigh of Kakata to Z. David Dean, registered in Vol. N/N 99, pages 158 & 159; probated on the 19th day of February 1937 and re-registered in vol. 49, pages 32 & 33 due to mutilation and contains forty (40) lots or ten (10) acres block # 1 FL.
3. A certify photo of a Warranty Deed from David Z. Dean to Samuel G. Dean, Sr. bearing block # 6FL registered in vol. 429 — 88, pages 328 — 331; probated on the 21st day of November 1988, but the deed was signed by David Z. Dean in 1974, February 8 and containing an other ten (10) acres.
4. Two (2) certify photocopies of Warranty Deeds from Samuel G. Dean to Richard Rouhana and Claude Rohana, signed 6th May, 1976, and registered in vol. 207-76, pages 191 & 192; probated 19th May, 1976, (b) Both deeds were signed the same day and year, probated the same month and day the same vol. 207-76, page 191, number 6FL, containing one (1) lot each.
5. A certify photocopy of a Warranty Deed from Richard Rouhana and Claude Rouhana to Madama Sirleaf bearing the number 1 FL, registered in vol. 428-88, pages 500501; probated on January 30th, 1989.
Survey Methodology:
Taking the dispute into serious consideration, the Board did a complete comprehensive, opened and closed traverse over the whole block where the dispute lies, in order to locate all boundary points and other important features on the ground so that a clear and explanatory map will be produced. In so doing, everything was done to the best of our abilities as is clearly shown on the map attached.
Technical Analysis:
The first point of our analysis has to do with the securitization of the various documents (deeds) that were received from the parties with special reference to the deeds issued to Samuel Dean and from Samuel Dean to Claude and Richard and Rouhana.
(1) The deed from David Z. Dean to Samuel Dean, is rather a bit doubtful. That David Z. Dean, to be specific, had ten (10) acres from the Leighs, is a clear and justified legal title from a forty acres [ 40 lots?] block bearing the number 1 FL, of which the Rouhanas had a businesses operating, which lies in the City of Kakata near the police station. Now there is a deed of ten (10) acres issued by David Z. Dean to Samuel G. Dean bearing the number 6FL, and according to Mr. Hena, Dean’s surveyor, says it is true that Samuel Dean sold land to Rouhana, but not from the ten (10) acres beside the police station. Now the question here is, did Mr. David Z. Dean have another ten (10) acres of land elsewhere that he sold to Samuel Dean or is it the ten (10) acres bought from Leigh with legal title? If not, then where is the other mother deed from block # 6FL to him, David Dean before transacting with Samuel Dean?
(2) Throughout the whole process from the day of our oath to the finishing of the field work, the Dean family did not tell the Board of another ten (10) acres of land elsewhere that Mr. Dean sold to Rouhana only Mr. Hena, but he refused to produce the mother deed as was done with Leigh’s deed, and also failed to show the Board the identical ten (10) acres block for Samuel Dean at block # 6FL.
(3) Madama Sirleaf has a deed containing two (2) lots from Richard and Claude Rouhana, bearing the number 1 FL, but she did not produced any legal title from the Deans to Rouhana as in the case of her and Rouhana, except the deeds produced by Mr. Hena which bears the number 6FL.
Difficulty:
Even though there were series of arguments amongst the various representations, everything went on smoothly.
Observations:
Your Honor, based on our keen study of all documents presented, and all boundary points shown on the ground that were located and plotted on the map attached before you, the following observations were made:
1. The area bolded red ABC-A represents two (2) lots of land claimed by Madama Sirleaf according to ground location shown.
2. The area bolded green (EFGH-E) represents two (2) lots of land owned by Madama Sirleaf according to a deed probated January 30th, 1989, according to law in vol. 428-88, pages 500 &501 recorded from the National Archives.
3. It is also observed that according to both ground and deed locations of Madama Sirleaf, she occupied a portion of Mr. Dean’s [ Z. David Dean ] ten (10) acres and a portion of the Leighs’ property as is shown on the map attached.
4. Area bolded brown (1, J.K) represents a portion of David Z. Dean’s ten (10) acres of land bought from the Leigh family and registered in vol. 49, pages 32-33 due to mutilation and probated on February 19th, 1937.
5. That the area bolded orange (1-L) represents a portion of T.W.D. Leigh’s twenty (20) acres of land adjoined to the ten (10) acres of Dean according to a deed registered in vol. 48, pages 371-372 and probated on the 19th day of September, 1933, according to law of the National Archives.
6. It was observed that the deed of Madama Sirleaf and the point shown by her cannot hold as is plainly shown on the map as located, (a) the deed says it commences from the Northeast corner of the Kakata Police Station’s property one (1) lot, and running 165 feet along the Salala main highway to a point looking at the distance 165 feet, it covers all the way to Queen’s Business Center and crossed beyond her ground location shown. (b)The ground location shows a steel rod by Moses Haggine’s Building according to her running down towards the Police Station, but when 165 feet measured, it covers the whole police station property, which as according to her deed description, the police station property existed before her property but has now been covered up. (c) Even though according to the information gathered, it is true that her grantor, Rouhana was operating a gas station or doing other business in the area but not with standing, the deed issued to her from the Rouhana’s couldn’t cope with the ground location and furthermore, Rouhana never gave her deed as guarantee from the Deans to the Rouhanas, but only Rouhana to her with the same block number of Mr. Dean [Z. David Dean]. (d) It is also observed that Madama Sirleaf s deed were separate lots owned by two persons, but who combined to issue her one (1) deed. Were Richard and Claude Rouhana issued one deed by Mr. Dean, if at all they were issued deeds?
Conclusion & Recommendations:
From our final analysis, the Board has come out with the following recommendations:
(a) That if at all Madama Sirleaf has the surety of her grantors having bought this identical place from Mr. Dean, then she should be in position to produce the deed of Dean to the Rouhanas bearing the lot number on her deed.
(b) That if at all it is proven beyond all reasonable doubts of Madama Sirleafs ownership, then the deed issued to her by the Rouhanas should be changed to cope with her confirmed premises.
(c) That the Court should be in the position to reconcile this point, where she is saying she bought from Dean ten (10) acres, [ but her point] commences from the Northeast corner of the police station and the police station on Leigh’s property, how come?
(d) That our final conclusion is that, according to all the analyses and observations by the Board, we conclude that Madama Sirleafs deed could not hold as been claimed by her deed and ground location to said area.
In the name of our Lord Jesus Christ, we humbly submit this as our findings into the investigation. May the Lord Almighty bless and guide us all.”
With the exception of the appellants’ surveyor, all other members of the board signed the report. The appellants’ surveyor filed his objection to the majority report which we shall come to later.
Appellants filed a motion objecting to the board of arbitration’s report. The objection filed basically states that the report be set aside and a new Board be constituted primarily because the report is vague and indistinct in that there is no award which would serve as a basis for a final determination of this matter. Infact, the investigative report, the appellants say does not settle the controversy, but expands same. The report is invalid because the instruction from the Supreme Court called for the arbitration between Rocky Ahmar as plaintiff, and Madam Sirleaf and David Siaway as defendants, and the court sua sponte added an additional party to intervene as a party in violation of Title 1, Chapter Five (5), § 5.63, Page 72 of the 1 LCLR, as well as the mandate of the Supreme Court. That such deviation from the Supreme Court’s order warrants abating of the entire proceedings. The motion also states that the alleged survey was irregularly done in that Ms. Mamie Varpah, an officer of court assigned to 13th Judicial Circuit Court, Margibi County, Republic of Liberia, who had lied under oath and without any authority or capacity, elected to mislead the board of arbitration that she was married to the late Samuel G. Dean, Sr. and purported to represent the Dean family by showing point of commencement of the Dean’s property over the objection of James Travis and other administrators of the intestate of the late David Z. Dean. The investigative report is contradictory in that on sheet two (2) of the report with specific reference to documents states in counts three (3) through five (5) that movants/defendants’ deed was traced to the late David Z. Dean who acquired title from T. W.D. Leigh; yet, on sheet three (3) of the report, the board states that the movants/defendants never produced any legal title from the Deans to the Rouhanas. The co-arbitrator, surveyor Dominic Hena, is estopped from repudiating his own act in that he, along with surveyor Wilmot S. James, Sr., conducted a survey for the David Z. Dean’s estate. The map prepared by the team shows at #44 that indeed the property occupied by the movants/defendants falls within David Z. Dean’s estate, which was later conveyed to Samuel G. Dean, Sr. Movants/defendants annexed copy of the map emanating from the survey as exhibit “/2” for Court’s attention, The appellee and intervenor’s surveyor, Dominic Hena should be held in the highest contempt of the Honorable Court for misleading Court when in fact he had earlier conducted a survey of this identical property, from which the Rouhanas derived their title, based upon which, the property was sold to the defendant, Madama Donzo.
An assignment was made and served on all the parties for a hearing on the appellants’ motion to vacate the board of arbitration’s report, but the appellants’ counsel failed to appear when the motion was called for hearing. Upon application made by the appellee’s counsel, the court dismissed the motion under Section 10.7 of our Civil Procedure Law. Thereafter, the Judge, on December 30, 2008, made a final ruling which we shall quote:
Ruling “In Re: Rocky Ahmar of the City of Kakata, Margibi County, Plaintiff versus Madama Donzo and David Siaway, also of the City of Kakata, Margibi County.
This matter is before this court based upon a mandate of the Supreme Court of Liberia to constitute a board of arbitration as provided for by our Civil Procedure Law.
In that mandate, His Honor Justice Kabinah Ja’neh ruled that the first board of arbitration be set aside and another board of arbitration be set up without the involvement of the Chief Surveyor of Margibi County.
In straight obedience to that mandate, on the 10th Day of October, A. D. 2008, a Board of Arbitration was constituted in which all interested parties were allowed to bring their representatives.
Madama Donzo named and brought Mr. Joseph S.B. Melin as her representative. Mr. Rocky Ahmar brought Mr. Dominic Hena, a Public Land Surveyor as his representative. Madam Marie Leigh-Parker brought Mr. Stephen Ndorbor, also of the Ministry of Lands, Mines and Energy as her representative. And this court named Mr. Edwin Boakai, Sr., of the Ministry of Lands, Mines and Energy as the Chairman of the Board of Arbitration. Accordingly, they were all sworn and qualified. They all constituted the Board of Arbitration which the Supreme Court mandated this Honorable Court to constitute.
On the 9th day of December, A.D. 2008, the Board of Arbitration submitted a report on the investigative survey in the above named case. In that Report, we observed that Joseph Melin, Madama Donzo’s representative did not append his signature to the majority report submitted, without filing any observation or report to indicate why he did not sign the report. But the Chairman of the Board of Arbitration wrote this court to the effect that since the completion of the report, they have tried over two weeks to get Mr. Melin to sign the Map and the Report, but all efforts proved futile.
According to the majority report, the Board said that they could not get Madama Donzo to co-operate, even to include the payment of the technical board of arbitration, through this court as was mandated by the Honorable Supreme Court of Liberia. Since the Board could not get Madama Donzo to pay the balance US$600.00, they thought it wise to appeal to this Honorable Court for the balance payment.
From the report itself, it is clearly indicated that Madama Donzo does not have any property on the ground as impressed by Phantom deed. As such, the Board could not do otherwise but to confirm that Mr. T.W.D. Leigh had twenty acres of land of which he sold ten acres to the late Dean. Accordingly, the deed was registered and probated February 19, 1937.
From that report, we take recourse to the Lamadine Report and discovered that Madama Donzo, in that report, refused, failed and neglected to sign the majority report which brought about this subsequent mandate the Supreme Court sent us for implementation. Again, her representative has woefully failed to endorse the report and has failed to assign any tangible reason whatsoever why he could not sign the report endorsed by the majority.
On the issue of the Report of the Board of Arbitration, it is the law in this jurisdiction as provided for by our Civil Procedure Code that the opinion of a majority of the Board of Arbitration shall hold.
From all indications in our synopsis, it is the holding of this court that the technical report of the Board of Arbitration constituting qualified and credible employees of the Ministry of Lands, Mines and Energy be, and the same is hereby affirmed and confirmed, and that this court has no other alternative but to confirm and affirm the Report of the Board of Arbitration.
Wherefore and in view of the foregoing facts and circumstances, it is the ruling of this Honorable Court that Madama Donzo, including all those under her authority directly or indirectly squatting, dwelling or occupying a part or the whole of the disputed premise indicated by the Board of Arbitration, are ordered evicted, ousted and ejected from the leased property of the plaintiff as described in the Arbitration’s Report. The defendant is also ruled to pay the balance surveyor arbitration fee of US$600.00. The Clerk of this Court is hereby ordered to issue a Writ of Possession and to have same placed in the hands of the Sheriff of this Honorable Court to proceed to evict, oust and eject the defendant and all those under her control. The costs of this court including the legitimate expenses of the plaintiff are ordered paid by the defendant. And it is hereby so ordered.”
Admittedly, apart from the appellant’s initial counsel’s ill-health for which he often sought medical attention out of the country, he gave numerous excuses to court for his absence in court on assigned dates. It was out of this frustration that the court constituted the first board of arbitrators in the absence of the appellants’ legal representation to conduct a survey that had been requested by the appellants. Having seen the need for adequate representation, the appellants retained an additional counsel in this matter. It is disheartening that both counsels did nothing in keeping with their professional and ethical duty to appear and argue their own motion filed to vacate the board of arbitration’s report or to take the necessary legal steps for protecting their client’s interest.
However, noting the glaring irregularities in the handling of this matter involving a piece of property, particularly where substantial development has been made, we expect that our courts below would haven taken cognizance of our laws and proceeded accordingly.
Our understanding of this matter is that the T.W. D. Leigh, with a deed probated 1933, for 20 acres of land (Block #1 FL.) situated in Kakata, Margibi County with the Republic of Liberia as his grantor, sold 10 acres of said Block #1FL. to David Z. Dean in 1937. When Z. David Dean died, his brother Samuel Dean, Sr. administered his estate. After the death of Samuel Dean, Sr., his son Samuel Dean, Jr. administered his intestate estate. In administering his father’s intestate, Samuel Dean, Jr. co-administered the estate of his uncle, Z. David Dean. A controversy arose between members of the Dean Family over the ten acres of Z. David Dean who is said to have had no issue. Samuel Dean, Jr. alleged that his late uncle, Z. David Dean, deeded the property to his brother Samuel Dean, Sr. before David’s death. The Deed proffered by intervenor Samuel Dean, Jr., appellee’s lessor however, shows the 10 acres allegedly deeded to Samuel Dean, Sr. as being located in block # 6FL and not 1FL as Z. David Dean from T.W. D. Leigh’s deed reflects.
This Court takes cognizance of a matter decided by it during its October Term, 2009, involving an appeal from the same 13th Judicial Circuit, Margibi Court, involving the heirs of the late Z. David Dean and Samuel Dean, Sr. The question then, as is now, is whether the deed to the property said to have been transferred from Z. David Dean to Samuel Dean, Sr. and proffered by intervenor in this case is the same property as that from T. Dupigne Leigh to Z. David Dean found in block 1 FL., or as the board asked, whether Z. David Dean had ten acres elsewhere in block # 6FL that was transferred to his brother Samuel, Sr.? Unfortunately, this question was not answered again, although a board of surveyors arbitrated this matter.
Contrary to the Judge’s ruling dated December 30, 2008, that Mr. Merlin, appellants’ surveyor failed to assign a tangible reason for refusing to sign the majority report, we see in the records, a report made to the court by surveyor Merlin with filing date, December 22, 2008. In his memorandum to the court with subject, “Report and rejection”, Mr. Joseph S.B. Melin who represented the appellants on the board of arbitration wrote a minority report in which he said the administrators of the David Z. Dean intestate estate were not present to show the corners of the estate. Rather, it was one Mamie Vamply whom the administrator complained against to the court, that she did not represent them, who showed the assumed point where the investigation commenced. In order for the board to perform an accurate and correct investigative survey, the board needed to commence the survey from an accurate point. Secondly, the parties involved were charged according to their quantity of land contained in their respective deeds, and to survey according to deed and ground location, but disappointingly, the Leigh’s 20 acres was never fully surveyed according to deed and ground location. David Z. Dean ten acres of land were also never fully surveyed according to deed and ground location. It was only Madama Donzo whose land was surveyed according to deed and ground location. Thirdly, there was a meeting of the parties called three times by the Chairman of the Board, all of which he Merlin attended. At the third meeting, Dominic Hena, the appellees’ surveyor, raised a point about lot number 6FL. The Chairman told the Board to travel to Kakata City so that Dominic Hena could show them which land is calling for lot number 6FL. It was because of this argument, the Chairman wrote the court requesting for more time so as to extend the investigation at the Liberia National Archives. However, the board did not go to the Liberia National Archives to authenticate the document involved, although all are certified photocopies. It is against this background that Mr. Merlin said he did not sign the report.
Count 3 of Samuel Dean, Jr.’s motion to intervene states:
“Movant further submits that he be permitted to intervene as a matter of right under the law to protect the property interest of his late father’s estate as well as the Lease Agreement executed in favor of the Plaintiff in these proceedings in keeping with movant’s deed to warrant and defend his lessee at all times.”
Attached to the motion to intervene is a copy of a deed from David Z. Dean to Samuel Dean, Sr., marked Exhibit M/2.
We agree with appellants’ surveyor that the deeds should have been authenticated at the National archives since they were all certified copies. Besides, it was only but fair that the deed annexed to the intervenor’s motion and pleading, with property said to be set in block 6FL, should have been initially identified on the ground and the survey begun in this block to identify the lots leased by the Appellee. Where the property under this deed could not be shown by the intervenor or his surveyor, how could the board have even begun the survey? It was wrong to begin the survey with the appellants’ deed which property was situated in block 1 FL. Under paragraph 5 of “Observation”, the board’s report states that area (1-L) represents a portion of T. W. D. Leigh’s twenty (20) acres of land adjoined to the ten (10) acres of Dean [ Z. David Dean] according to deed registered in vol. 48, pages 371-372 and probated on the 19th day of September, 1933. This is not clear, since T.W.D. Leigh sold ten (10) acres of his property to Z. David Dean and now should have only ten acres left as per his 1933 deed. The board’s report also states that Mr. Hena, co-arbitrator representing the appellees said that Samuel Dean Sr. did sell land to the Rouhanas but not from the ten acres near the police station. However, Hena did not show where the land was situated.
This Court says it was only right that the board use the deed proffered by the intervenor, Samuel Dean, Jr., and on which the appellee relied, to designate the plaintiff/appellee’s leased property. We failed to see why the Z. David Dean’s deed was used for the survey since the administrators for his estate were not a party in the case and were not present for the survey. We see in the records a letter from the administrators of the David Dean’s estate. It reads:
“David Z. Dean Estate
Administrator
Kakata City, Margibi County
November 10, 2008
Mr. Edwin Boakai
Chairman, Board of Arbitration
Rokee, Leigh Parker vs. Madama Sheriff
Kakata City, Margibi County
Dear Mr. Boakai:
If you can recall, the administrators of Bleedee Dean Estate came to Kakata on Tuesday, November 4, 2008, to put a halt to the survey you and members of the Board of Arbitration were conducting in the David Z. Dean estate for which we were not informed.
However, we were told by the Sheriff of the 13th Judicial Circuit and you that such protest be reduced in writing for onward transmission to the Judge of the 13th Judicial Circuit.
It is in this light that we are forwarding our official protest for the following reasons to wit:
1. To know who called for the survey of the Deans’ Estate instead of the Administrator.
2. Who was the surveyor representing the Dean’s Estate?
3. To know as to whether Dean’s Estate Administrators were informed of the survey
4. To know the status of Mamie Vamply who claimed to order the survey.
5. To know the status of Mr. Dominic K. Hena who claimed to represent the Administrators of the Deans’ Estate when he was not hired by the Administrators.
In view of the five(5) points mentioned above, this letter serve as our official protest against the survey that you started on Tuesday, November 4, A.D. 2008, until the five points can be satisfactorily addressed by the Board of Arbitration through the court.
The Administrators of the Dean Estate are all law abiding citizens and once the issue of the Dean Estate is before the Supreme Court of Liberia and as such no one has the right to order for survey in that estate.
We pray and hope that you will listen to the voice of the administrators.
Kind regards.
Very truly yours,
Administrators
Thomas Travis
Thomas Popei
Bleedee Dean
Cc: Joseph Melin (Surveyor)
Madam Sheriff
The Sheriff
Mamie Vamply
Mr. Dominic K. Hena
CIIr. Cooper Kruah
CIIr. Tuan
Wilmond James
Police Commander (Kakata Police Detachment)
Judge Chenoweth (13th Judicial Circuit Judge)”
Again, there is no record on how this issue was handled by the court below. This Court would have thought to settle such an issue, the board of arbitration comprising members with expertise would have primarily done all that was necessary by authenticating the area in which Samuel Dean property in block 6FL falls and then establishing the exact location of the property of the appellees. Instead, the board writes: “That if at all Madama Sirleaf has the surety of her grantors having bought this identical place from Mr. Dean, than she should be in position to produce the deed of Dean to the Rouhanas bearing the lot number on her deed.” Under paragraph 1, “Technical Analysis” of the report, the board states, “David Z. Dean, to be specific, had ten (10) acres from the Leighs, [which] is a clear and justified legal title from a forty acres [40 lots?] block bearing the number 1 FL, of which the Rouhanas were having businesses operating, which lies in the City of Kakata near the police station.” So did the board recognize that the Rouhanas operated business on the premises before it was allegedly sold to Madama Donzo?
Our query is, were the appellants legally under obligation to prove their claim to the property when it is a trite law that one who seeks to eject another must rely on his title and not the weakness of the defendant?
The appellee did not deny that the Deans sold two lots to the Rouhanas, but emphasizes in his pleadings that the co-appellant fraudulently obtained the property from the Rouhanas (see par. 2 and 3 of his reply). He even went further to file a Bill of Information, attaching a certificate of non-discovery dated August 9, 2008, from the Center for National Documents & Records, informing the court below that the appellants certified copy of their deed attached to their pleading was obtained fraudulently and therefore the court should ignore and disregard same and enter a judgment in favor of the plaintiff/appellee. The appellants in turn filed a document from the same Center for National Documents & Records in which the agency revoked this Certificate of Non Discovery which stated that the volume in which the appellants’ information was contained formed an integral part of its collections and holdings.
Interestingly, we see, no where in the record where the Rouhanas gave the appellee a power of attorney to represent their interests in this matter or to administer their estate. Where the Rouhanas felt that the appellants claim was fraudulent, they would have requested the court to have them intervened. In this regard, the appellee was only under an obligation to prove and establish with certainty, his right to the property occupied by the appellants. This then begs the question: since the survey done is alleged to have been extensive and not limited to the area of dispute, did the survey settle the issue in dispute, whether or not the appellant was illegally occupying the two lots allegedly leased by the appellee in block 6FL?
This Court says clearly that the board failed to establish with certainty that the appellants were occupying the appellees’ property.
Our review of the arbitration report of December 22, 2008, clearly sees no award given to the appellee. No where in the conclusion and recommendation of the report is mention made that the appellee’s two lots were identified as that occupied by the appellants and that the appellee had superior title through his lessor. This Court says the board could not have finalized this matter without its report stating clearly and with certainty the property of Samuel Dean, Sr. It was important for the board to have communicated clearly in its report how this issue of 10 acres in block #1 FL belonging to David Dean intestate was reconciled with the 10 acres in block # 6FL belonging to Samuel Dean, Sr. and under which the appellees claim their title. This is especially more important because of the constant legal actions surrounding the controversy between the administrators of Z. David Dean and Samuel Dean, Jr. intestate estates regarding the two deeds for ten acres in block 1 FL and 6FL.
The Judge, in her final ruling, states: “It is the ruling of this Honorable Court that Madama Donzo, including all those under her authority directly or indirectly squatting, dwelling or occupying a part or the whole of the disputed premises indicated by the Board of Arbitration, are ordered evicted, ousted and ejected from the leased property of the plaintiff as described in the Arbitration Report.”
We must ask, which leased property of plaintiff/appellee was identified in the board’s report? Was the appellee’s property identified as being part of the Leighs and Z. David Dean’s intestates instead of being part of his lessor’s property as proffered by his deed? Viewing the conclusion and recommendation of the board, is it conclusive as to whether in fact the appellants did indeed occupy the appellees’ property? Was the appellees property identified by the board with certainty? This Court has said succinctly that: “Since in ejectment, the plaintiff must as a general rule, recover upon the strength of his own title and not upon the weakness of his adversary’s, where his title is controverted, the burden of proof is upon the plaintiff to establish title in himself, or at least such title to the premises in controversy as will entitle him to the possession thereof unless the defendant has a better title. Until the plaintiff has made a prima facie case by showing title sufficiently upon which to base a right of recovery, the defendant is not required to offer evidence of her title, and if the plaintiff fails in his proof of title, he cannot recover, however weak and defective the defendant’s title may be.” Samuel Cooper, Sr. vs. Peter Gissie et. al.[1979] LRSC 35; , 28 LLR, 202, 210 (1979).
From the above quotation, the burden of proof rests squarely on the plaintiff and intervenor/appellees to show that the appellants were occupying their property. The board’s report having failed to establish that the property occupied by the appellants belongs to the appellees, the Judge’s ruling which states that the appellants be ousted and ejected from the plaintiff/appellee’s leased property as described in the arbitration’s report can not be upheld by this Court.
Counts 1, 2, and 3, of appellants’ bill of exceptions state:
1. “That although the parties in these proceedings are Rocky Ahmar vs. Madama Donzo and David Siaway, Your Honor erroneously rendered a judgment allegedly based upon an arbitration report that the property is owned by the Leigh family; without showing when, where, and how this new party entered the case at bar in order to participate in the survey ordered by the Chambers Justice’s mandate to you for which palpable mistake of law, appellant then and there excepted.
2. That it is the law in this jurisdiction that additional parties to a cause of action may be added upon filing of a verified motion to intervene, along with an answer; see 1 LCLR 5.63, page 72. The Leigh family never intervened into this case, yet Your Honor erroneously indicated on sheet one of your Final Judgment, 5th paragraph that “… Mrs. Marie Leigh Parker brought Mr. Stephen Ndorgbor, also of the Ministry of Lands and Mines;” for this palpable error and gross mistake of law, appellant excepted to Your Honor’s final judgment.
3. Appellant strenuously contends that Mrs. Marie Leigh Parker was never a party to these proceedings. Moreover, the Supreme Court’s mandate specifically ordered Your Honor to conduct arbitration proceedings only between Rocky Ahmar and Madama Donzo. Where did Your Honor find a new party whose titled deed is non existent in the entire trial records, and to whom no award was made by the arbitrators to render your final judgment ousting the defendant from property that the defendant and their privy have continuously, notoriously, openly and successively held for over thirty (30) years. For which gross reversible error appellant there and then excepted.”
We ask, how do the Leighs come to be put in possession of the property?
Our Civil Procedure Law states clearly how one who is not a party to an action may intervene in an action. §5.62 “Permissive intervention states:
1. In general Upon timely application, any person may be allowed to intervene in an action:
(b). When the applicant’s claim or defense and the main action have a question of law or fact in common.”
2. Consideration by court. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
The procedure for one desiring to intervene in an action is: “A person desiring to intervene shall serve a motion to intervene upon all parties affected thereby. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.” 1LCLR, Titlet §5.63 Procedure.
This Court has said one applying to court to intervene in a matter must file a motion to intervene concomitantly and simultaneously with a pleading setting forth the claim or defense for which intervention is sought. Republic vs. Kenneh, 33LLR,114, 120 (1985); Republic of Liberia vs. Yancy and Hill, 31LLR, 209, 223 (1983). 1LCLR title 1, §10.8 and §10.9 also state that an order determining a motion, whether made by a court or a judge, shall be in writing if made upon supporting papers. It shall be signed by the judge who made it, state the court of which he is judge and the place and date of the signature, recite the papers used on the motion, and give the determination or direction in such detail as the judge deems proper. The order determining the motion shall be entered and filed by the clerk of the court where the action or proceeding is triable.
In this case before us, this Court sees no motion filed and served by the Leighs to intervene in this matter, except the letter supra written to the court requesting it to allow the Leighs to join as a party in the survey mandated by the Supreme Court. Again, we do not see the order of court passing on this matter of the letter. Was this letter sufficient for an intervention as a party in this matter?
We feel that this letter was not sufficient to have joined the Leighs as a party. We agree with the appellants that the method engaged in by the court below in handling this matter is a strange procedure. In Dwalubor vs. Good-Wesley, 21LLR, 43, 47, ( 1972), there were two ejectment actions against appellant for the same property. On appeal, the appellees sought to bar a third party from pursuing her ejectment action, stating that the third party was barred from pursuing her action because she did not intervene in the matter between the appellant and appellees and the Court had sent a mandate to have appellees put in possession. This Court ruled that, “Persons who are not party of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matter involved, they must either contrive to obtain the status of parties in such suit or institute an independent action.” Also in Gaddini vs. Iskander et. al., 19LLR 490, 493 (1970), this Court said. “A court can not render a valid judgment in favor of a party who is not before the court and is not represented in any manner in the action.”
From the arguments before us and the letter filed by representatives of the Leighs, we are convinced that they had constructive notice of the ejectment action between the appellants and appellees in the 13th Judicial Circuit Court, and should have therefore filed a motion in the court to be joined as a party. The mandate by the Supreme Court specifically stated the agreement reached by the appellants and the appellees to arbitrate this matter. Paragraph 4 of the Judge’s ruling stated that it acted in straight obedience to that mandate, but the mandate of the Supreme Court did not incorporate another party which was not privy to this understanding. For the Leighs to have joined as a party based on the letter written to the court was erroneous and should not have been allowed by the court.
Strangely, after an exception was taken to the Judge’s final ruling and an appeal announced, the appellants in their brief before us have stated that they were ousted from the property and the Leighs put in possession thereof by the magistrate of Kakata. Was this done by the acquiescent of the Judge? There is no record before us of how the dispossession was carried out and neither of the counsels appearing before us has been able to explain to this Court this strange practice since in an ejectment action an appeal serve as a stay to judgment in the lower court. It is also a trite law in our jurisdiction that where title is in issue, a magisterial court has no jurisdiction. We are again baffled that there was no legal action taken by the appellants’ counsel to stop the magistrate or the court below from proceedings improperly, when this Court has said in several of its opinions that it is contemptuous for a court to interfere with a matter pending before the Supreme Court and where such appeal serves as a supersedeas. Ballah Vs. Thorpe, 29LLR. 286, 290 (1981); Karngbe vs Yancy and Baimba. 31LLR 464, 471 (1983). Is there something else that the Court has not been informed about?
We say, from the records before us, the board did not identify the appellee’s property nor found that he had a right of possession to the property occupied by the appellants. This Court also says that the procedure in which the Leighs has participated in this matter is irregular, and that it was wrong to oust the appellants from their property and put the Leighs in possession based on the survey conducted.
That the judgment of the lower court is reversed and the case remanded with instructions as follows:
1. That in order to prevent a multiplicity of suits, the Leighs be allowed to file and serve the necessary papers to join in this matter, and the trial court should pass on these papers as a necessary party.
2. That the trial court below summons the board of arbitration to reconvene and carry out an appropriate and accurate survey identifying appellee’s property as per intervenor’s deed attached and proffered as Exhibit “M/2” to its Motion to Intervene; and the board of arbitration conducts a resurvey using Samuel Dean Sr.’s deed and the appellants’ deed to confirm whether or not appellants are occupying appellee’s property.
3. That the appellants pay to the board of arbitration the balance Six Hundred United States Dollars (US$600) in order for it to finalize its report as per our instructions and to bring finalization to this matter. No other amount should be required as cost for the resurvey, except that the court should determine a minimum amount for incidental and transportation expenses.
4. That since this matter involves property rights, which in our opinion, was not properly settled by the trial court, all rental payment received from the disputed property be put in escrow until this matter is finalized.
WHEREFORE AND IN VIEW OF THE FOREGOING, The Clerk of this Court is hereby ordered to send a mandate to the court below informing the judge presiding therein to resume jurisdiction and execute this mandate. Cost disallowed. AND IT IS HEREBY SO ORDERED.
COUNSELLORS SAMUEL R. CLARK OF THE LAW OFFICE OF CLARK AND ASSOCIATES AND NYENATI TUAN OF TUAN WREH LAW FIRM APPEARED FOR THE APPELLANTS.
COUNSELLORS RICHARD K. FLOMO, SR. APPEARED FOR THE APPELLEE